Miss S Dees v Shaping Cloud Ltd — 2022

Miss S Dees was employed by Shaping Cloud Ltd from 5 October 2020 until her resignation on 31 January 2022. Her contract dated around 7 October 2020 provided at section 7.5.1 that commission would be payable only in accordance with any commission scheme operated by the respondent, if she had been invited to participate in writing and had accepted the scheme. The tribunal also considered the commission scheme signed by the claimant on 5 January 2021, which was stated to run from 1 November 2020 to 31 October 2021, and the later email exchange of 11 January 2021 in which the monthly targets were restated for a January to December 2021 period. Applying ordinary contractual interpretation principles, including Investors Compensation Scheme v West Bromwich Building Society and Wood v Capita Insurance Services Ltd, the tribunal found that the effective period of the commission scheme had been verbally amended by agreement on 8 January 2021 and confirmed in writing on 11 January 2021, notwithstanding a clerical error in the schedule heading.

The tribunal rejected the claimant's case that the July 2021 meeting with Helen Gerling and Emma Trevor-Jones varied her contractual entitlement so that she would be paid commission after leaving employment. It found that the meeting addressed the problem that the scheme did not incentivise sales staff on long-term or variable contracts if they left before commission fell due, but that Ms Gerling only confirmed the position under the current scheme and said she would consider the issue for any future scheme. The tribunal found there was no oral variation of the claimant's contract or commission structure, no written amendment, and no change to the FY2021 scheme for the claimant or the sales team.

The tribunal held that under the commission scheme applicable from January to December 2021, the claimant ceased to be eligible for commission payments from the date of her resignation on 18 November 2021. It found that the total wages paid to her were the amounts properly payable, so no unauthorised deductions were made within section 13 ERA 1996. The listed sub-issues about further commission on the Regatta Managed Services Contract, GMCA Managed Services Contract, the Irwin Mitchell DevOps Migration Team deal, Regatta Dev Draw Down Days, and Irwin Mitchell Additional Consultancy Days therefore fell away and were not decided separately.